APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA
Fuller, Harlan, Brewer, Brown, White, Peckham, McKenna, Holmes, Day
MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.
We think the court below was right in holding that the first and second grounds of demurrer were not well taken, but do not think it necessary to review the subject, as the opinion which we have reached on the merits of the case will dispose of the entire controversy.
The act of Congress approved June 28, 1898, commonly known as the Curtis Act, 30 Stat. 495, c. 517, under which the act of the Chickasaw Nation and regulations of the Secretary of the Interior which are assailed were adopted, is entitled "An act for the protection of the people of the Indian Territory, and for other purposes." The question of the validity and construction of that act was under consideration in Stephens v. Cherokee Nation, 174 U.S. 445, and Cherokee Nation v. Hitchcock, 187 U.S. 294, and in view of the rulings in those cases the constitutionality of the statute is not now open to question
While it is unquestioned that by the Constitution of the United States Congress is vested with paramount power to
regulate commerce with the Indian tribes, yet it is also undoubted that in treaties entered into with the Chickasaw Nation, the right of that tribe to control the presence within the territory assigned to it of persons who might otherwise be regarded as intruders has been sanctioned, and the duty of the United States to protect the Indians "from aggression by other Indians and white persons, not subject to their jurisdiction and laws," has also been recognized. Arts. 7 and 14, Treaty June 22, 1855, 11 Stat. 611; Art. 8, Treaty April 28, 1866, 14 Stat. 769. And it is not disputed that under the authority of these treaties the Chickasaw Nation has exercised the power to attach conditions to the presence within its borders of persons who might otherwise not be entitled to remain within the tribal territory.
Legislation of the same general character as that embodied in the act of the legislature of the Chickasaw Nation here assailed as invalid had been by the Chickasaw Nation before the passage of the Curtis Act. The essential provisions of one such law, passed on October 17, 1876, were recited in a report made to the Senate by the Committee on the Judiciary, on February 3, 1879, from which we copy the following:
"The law in question seems to have a twofold object -- to prevent the intrusion of unauthorized persons into the territory of the Chickasaw Nation, and to raise revenue. By its terms no citizen of any State or Territory of the United States can either rent land or procure employment in the Chickasaw country without entering into a contract with a Chickasaw, which contract the latter is to report to the clerk of the county where he resides, and a permit must be obtained for a time not longer than twelve months, for which the citizen is to pay the sum of $25.
"Every licensed merchant, trader, and every physician, not a Chickasaw, is required to obtain a permit, for which the sum of $25 is exacted."
Declaring in substance that under the existing treaties with the tribe, the Chickasaws were not prohibited from excluding
from the territory of the nation the persons affected by the act, the committee expressed the opinion that the act which was the subject of the report was not invalid.
Again, on December 14, 1898, the legislature of the Chickasaw Nation passed an act, which in section 2, with some exemptions mentioned in a proviso, imposed the following permit taxes:
"SEC. 2. That any non-citizen who owns horses, jacks, jennets, mules, or other cattle, and who holds them upon the public domain or within the Chickasaw Nation, shall be required to pay an annual permit tax of twenty-five cents per head for each horse, jack or jennet, mule, or bovine, and five cents per head for each sheep and goat so held within this nation."
By the ninth section of the same it was provided as follows:
"SEC. 9. That any non-citizen, subject to a permit tax under the provisions of section one of this act, and who shall refuse to pay his permit tax, after due notice for thirty days, shall be deemed an intruder by virtue of the intercourse law of the United States of America and subject to removal; and such intruder shall be reported to the United States Indian agent (or inspector) to the Five Civilized Tribes, and shall forthwith ...